Thursday, July 21, 2005

A challenge to Dahlia Lithwick

[Judge John Roberts] doesn't appear to be crusading for a wholesale national retreat to the good old days of executing miscreant 'tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations).

Snark, satire, sarcasm, exaggeration — these all have their places, and from time to time I'm a willing practitioner of each. As rhetorical devices, they're effective and defensible only if they are grounded in at least a grain of arguable factual truth.

Regular readers of my blog will know that I don't use the term "liar" lightly. But I assert that you, ma'am, have told an outright lie in the parenthetical quoted above, and I call you on it.

The LA Times article that you link is a partial reprint of what Judge Roberts wrote in the Hedgepeth case. The text there not only fails to support your assertion, it entirely refutes it. And although (as my friend Patterico has demonstrated) the LAT has elsewhere engaged in the same misrepresentation that you did, one could at least defend the LAT's writers and editors as being merely stupid instead of dishonest. Perhaps they never actually read the opinion, or lacked the training to understand it.

But you, Ms. Lithwick — a senior Slate editor, a graduate of Yale University and Stanford Law School who had incontrovertible access to the facts that you've misrepresented — cannot plead stupidity. I therefore say that you, ma'am, are just a liar.

My challenge is for you to either substantiate your statement with even a single paragraph from the opinion itself which even "seemingly" supports the view that Judge Roberts saw anything "good" (or wise or appropriate or admirable) in the local law and policies being challenged — or else admit that you can't. If all you can point to is the raw outcome of the case — in which the district judge, Judge Roberts, and two other DC Circuit judges all refused to find a constitutional violation, yet all expressly condemned the local law and policies as "foolish" or worse — then you surely must explain why that result is a better indicator of Judge Roberts' views than everything else he wrote in the opinion that is absolutely contrary to the views you impute to him.

I expect that you'll neither defend yourself nor admit that you were lying, and that instead you'll simply ignore this. I'll email you and your publication to try to bring it to your attention, but my blog is a small one (barely 1.5 million "page views" since 3/10/04), and although you've linked to it in the past, this time you'll probably just pretend that I don't exist — that's no harder than pretending Judge Roberts has said the opposite of what he actually said, is it? Still, my comments section is open, ma'am, and you certainly have plenty of bandwidth of your own to defend yourself. Can you?

I have two daughters, ages 10 and 14, and they eat french fries. Judge Roberts has a much younger daughter. I can't speak for him, of course, but I'll freely admit that if it'd been one of my daughters who'd been arrested, I'd almost certainly have ended up spending more than three hours in the clink  and have richly deserved it  because I'd probably have gotten into a fistfight with the arresting officers. I also freely admit that when it comes to them, my powers of constitutional analysis evaporate and my reptilian hindbrain takes over. (Young suitors-to-be beware, you are again on notice, and I again undercut my potential temporary insanity defense to manslaughter-by-shotgun charges.) But (recusal/disbarment/impeachment aside) if I'd been convicted as a father, I hope that I'd have had the courage to vote to affirm my conviction as a circuit judge (or, as here, to affirm the dismissal of a section 1983 collateral attack on the arrest, which never led to any conviction).

Fortunately, my own daughters have so far not run afoul of any laws and policies like that which young Miss Hedgepeth encountered. No french fry they've yet eaten has landed any of us in jail. And fortunately, to my knowledge anyway, my daughters have so far been far more honest with me than Ms. Lithwick has been with her readers.

Mr. Shearer, I know you, from your many valued comments here, to be a well-educated and well-informed person. You probably had read other descriptions of the Hedgepeth decision, or perhaps had read it yourself. Certainly anyone who's read the decision or a fair characterization of it would recognize that Ms. Lithwick's description was ridiculous.

How many of her readers, though, fall into your category? 10%? 30%? Even if it's 90%, that would make this an inexcusable distortion in my humble opinion, unworthy of either a lawyer or a journalist, and especially unworthy of a lawyer-journalist.

Maybe it's okay to tell a lie if everyone knows you're lying. But that's not this, and huge segments of the American public  and probably of the Senate  are still learning and making up their minds about Judge Roberts. "[E]xecuting miscreant 'tweens" was the obvious hyperbole, but in context, Ms. Lithwick appeared to be making an assertion of fact in her parenthetical, and it precisely ties to similar distortions being promulgated by anti-Roberts interest groups.

As a resident of greater Washington DC, I find the application by Metro police of anti-eating ordinances to 12 year olds to be appalling. Having said that, I am extremely comforted by Roberts' approach to the case and its lack of judicial activism to "right a clear injustice" (borrowing progressive tone). My read of the facts and ruling seem clear that Roberts subscribes to that conservative maxim that, "the fact that a law is incredibly dumb, does not in itself make the law unconstitutional. In this case the locals, outraged at the actions by Metro had changed their policies on handling of children, if not on food, long before the case got to Roberts.

I think we made a mistake some years ago in not confronting more forcefully all polticians, media types, etc. who misused and abused the word, "liar". The word and concept have become so normalized that now there is hardly a sting to it at all. We have the capacity due to the division in our society between personality types to maintain such a double standard.

The likely response is, "So what. F__ off now."

But the point made is good and well worth making. If not made, the situation will be worse yet. However, the lesson will not be learned without punishment (drop your subscriptions).

Beldar, it is true I was familiar with the facts of the case. However I think even an uninformed reader would have reason to doubt the sentence you bolded was intended to be a fair summary of Roberts' views. This is easily confirmed by following the included link. I believe others (like instapundit) sometimes do the same thing (ie provide a misleading characterization to get you to click a link).

I have noticed some conservatives seem to have a visceral dislike for Dahlia Lithwick which I don't really understand. Similarly for some liberals and Mickey Kaus. I don't see anything wrong with trying to mix in a little humor (even if it doesn't always work).

Also I think if a statement has several possible interpretations it is uncharitable to immediately assume the worst.

Finally if I understand the case correctly the child would not have been arrested if she had been accompanied by a parent so it is probably safe for Beldar to take his daughters on the Washington metro.

Mr. Shearer, I don't mind mixing in a little humor. And I don't have a visceral dislike for Dahlia Lithwick, although I frequently disagree with her; if you follow the link in my original post, you'll find that I basically agreed with her about Justice Scalia's recusal in the Newdow Pledge case, even though she (apparently through sloppiness) absolutely misdescribed my own arguments that she'd linked to. That wasn't humor on her part, that was sloppy. Sloppy doesn't earn my respect, but it doesn't prompt me to call someone a "liar," either.

But this wasn't sloppy. This was Ms. Lithwick repeating, even embellishing upon, a talking point of the far-left that is a serious misrepresentation  one that no lawyer, nor any reasonably intelligent person, could possibly have believed to be truthful if he or she had actually read the opinion.

And I do hold Ms. Lithwick to a higher standard, based on her education, her law license, and her self-proclaimed expertise about legal matters. She writes about "Jurisprudence" for a national online publication; Slate markets her as being someone upon whom its readers can rely with respect to its reporting and commentary on the Supreme Court. Whether I like her or not, I do not expect her to be able to lie with impunity, certainly not on something this important.

Is her lie excused by the fact that it was so clumsy? Tell me this, sir: You felt strongly enough to comment twice about this post (which, again, I appreciate; I do indeed value your input). Did you click and read word-for-word, start to finish, every single hyperlink that I included in it? The LAT headline was: "'Eating a Single French Fry in a Metrorail Station.'" The LAT's brief summary before it began quoting from the opinion was:

In a zero tolerance case, the court upheld the arrest and booking of a 12-year-old girl for eating a French fry on the Washington, D.C., subway system, where consuming food is prohibited by law. Her lawyers challenged the legality of her arrest. In October 2004, Roberts wrote the majority opinion rejecting her contentions.

The headline and summary are both pretty harsh, or at least suggest that Judge Roberts was. At a quick glance, they might indeed seem to support Ms. Lithwick's misrepresentation. If one clicks her hyperlink merely to confirm that, "Yup, there's a description of a french fry case," one won't catch her in her lie, but will be reinforced in believing it.

I repeat, if the probability of anyone being misled by this lie is even 10 percent, that's unacceptable. Surely you don't suggest, sir, that at least one out of ten readers might not have taken Ms. Lithwick at her (false) word, do you?

Were I to misrepresent a precedent like this to a court in a legal brief, I'd be in danger of losing my license. At a minimum, I'd get a serious chewing-out by any judge who caught me, and I guarantee that "I was making a little joke, Your Honor" would get me in worse trouble. The Canons of Ethics requiring "candor to the tribunal" don't govern Ms. Lithwick's publications in Slate. But what she wrote is still false, and I believe she knew it was false when she wrote it. (If she wrote about the case without having read it, then her inescapable implication that she'd read it was a lie, and she was inexcusably reckless.)

I believe others (like instapundit) sometimes do the same thing (ie provide a misleading characterization to get you to click a link).

Anyone who has heard the special interest talking points will understand the reference without having to click on the link. So Lithwick's assertion can easily be understood as a genuine slam on Roberts, without clicking on the link.

A Google site search on Slate.com for "Lithwick miscreant" produces 8 hits other than today's post; in none of them did Ms. Lithwick herself use that word.

It's not a terribly common word, but Ms. Lithwick, as previously noted, has an excellent education, and Walter Dellinger did use it in an online debate with her last year, in a funny and memorable fashion:

You can often tell from the first sentence uttered from the bench where a decision is heading. Take criminal cases, for example. If the conviction is being overturned, the opinion will start with something exalted, like, "From the time of the Magna Carta. ..." But if majority opinion begins, "It was a dark and stormy night as Mary Jones walked home from her very first prom ..." you know the miscreant who did Mary harm is headed straight for the penitentiary.

So let us stipulate that this word was already part of her active vocabulary. Interestingly enough, it also appears in Judge Roberts' opinion, in the quoted excerpts from that opinion published by the LAT article, and in this description of the Hedgepeth case in anti-Roberts materials published by the People for the American Way. Hmmmm.

Was Judge Roberts calling young Miss Hedgepeth a "miscreant" for eating the french fry? No, he wasn't, notwithstanding Ms. Lithwick's reference to "the good old days of executing miscreant 'tweens." That, I'll agree, clearly enough appears from the context to be Ms. Lithwick's sarcastic hyperbole, rather than any sort of factual assertion about what Judge Roberts said or wrote in the case.

But take a look at the PFTAM's pitch: Like the LAT, they selectively quote from Judge Roberts' opinion to give the misleading impression that he was endorsing as wise the DC Metro's rationale for not issuing tickets to juveniles (bracketed portion theirs):

According to Roberts, juveniles given citations might give the police "an entirely fanciful [name] or, better yet, the name of the miscreant who pushed them on the playground that morning," and their parents would then never know about their transgression.

Well, that's very misleading as well. Ed Whelan has fisked PFTAM's overall mistreatment of Hedgepeth  PFTAM is desperate to make Judge Roberts look like an ogre who lives to mock, belittle, and gnaw the bones of twelve-year-old girls (instead of being a concerned father who was privately outraged by the treatment of this particular little girl). But with respect to this specific point and the "miscreant" reference, Judge Roberts was engaged in something familiar to every first-year law student taking constitutional law  a discussion of "rational review" analysis. Here's the full quote from the opinion, for context (boldface mine):

Rational basis review applies and we accord the challenged policies a strong presumption of validity. We will uphold them "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Communications, 508 U.S. 307, 313 (1993).
What is more, "those attacking the rationality of the legislative classification have the burden 'to negative every conceivable basis which might support it.'" Id. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). We therefore need not review all the reasons given
by the defendants in support of the challenged distinction between children and adults; it is enough that we find one reason rational. We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.

Issuing a citation to a child is complicated by the fact that there is often no ready way to ensure that the child is providing truthful or accurate identifying information. A child often will not be carrying a form of identification, and there is nothing to stop one from giving an officer a false name -- an entirely fanciful one or, better yet, the name of the miscreant who pushed them on the playground that morning. In this situation parents would be none the wiser concerning the behavior of their children. The correction of straying youth is an undisputed state interest and one different from enforcing the law against adults. Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen -- detention until the parent is notified and retrieves the child -- certainly does that, in a way issuing a citation might not. The district court had and we too may have thoughts on the wisdom of this policy choice -- it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears -- but it is not our place to second-guess such legislative judgments. See City of New Orleans v. Duke, 427 U.S. 297, 303 (1976) (per curiam) (rational basis review does not authorize the judiciary to sit as a "superlegislature").

Was Judge Roberts saying that it's a good idea to arrest (rather than ticket) first-offending juveniles for eating a french fry? No, in context he very clearly was suggesting it was a stupid idea, but that "stupid idea vs. smart idea" wasn't the issue. If "stupid idea vs. smart idea" is the issue, then courts get to trump legislatures whenever they think they're smarter than legislators (which is pretty much every day, on almost every issue, given human nature and world history of legislatures). Refusing to declare legislation unconstitutional simply because it's stupid is a key indication of a judicial conservative, and it also happens to be what the relevant Supreme Court precedents (cited by Justice Roberts) require as well.

So tell me, Ms. Lithwick, if you're reading this: Is your first-time use of the word "miscreant" today in all the tens of thousands of words you've written before on Slate a coincidence? Or maybe did that word jump out at you, and stick in your mind, after reading the Dowdified quotation of Judge Roberts that appears on the PFTAM website? I'll take your word for it either way, ma'am ... just wonderin'.

In line with what Patterico alluded to above, Ms. Lithwick has proven herself to be unserious--she often writes drivel. (For example she wrote a frivolous essay about Justice O'Connor which someone with Lithwick's credentials should of have been embarrassed by. Heather MacDonald, who is a serious person, ripped it to shreds on NRO.) But she seems to have crosed the line into outright mendacity here. And I'm glad you (and Patterico) have called her on it.

Speaking of frivolous, I saw on Captain Ed's site that Robin Givhan of the Washington Post has resorted to the "and your mother dresses you funny" critique of a Supreme Court nominee's children. No word yet if the Democrats think Givhan's observations constitute "extraordinary circumstances..."

No less a lawyer than Lawrence Tribe is using the French Fry attack on Roberts. I heard this last night on Fox News:

HUME: From what you know of him, how do you see that?

TRIBE: It’s a little hard to say. I was, I have to say, frankly, a little stunned at this strange case of the French fry, this case of Ansche Hedgepeth, because, even though it’s just one small case with one 12-year- old girl, there were things about it that I wanted really to ask John about.

I mean, in particular, in saying that the Constitution afforded no protection against a flat rule that allowed no tolerance whatsoever when someone, like a little kid, eats a piece of food in the subway, why didn’t think that violated liberty?

After all, Justice O’Connor (search), whose place he would take, thought that even a less stringent rule, a rule about seat belts, which did allow the police discretion, violated liberty. She was in dissent in that case, and he extended the Supreme Court’s rather narrow view of liberty.

And I think that’s sort of a window. So I want to know, you know -- that’s not consistent, really, with the sort of humane and decent John Roberts that I thought I knew."

Maybe discussion of this case will get down to the real issue that our political process has to resolve - what is the nature and scope of the power of judges? Judicial conservatives are saying - just read the law and the Constitution. Liberals are saying, here's our means of bringing a higher view of worldly affairs to society. The pitfall is obviously "our means" - not you the voter.

Liberals see this case as a heart-tugger, much like black civil rights was, and eagerly exploit the details to uncut the conservative principles. If one debated openly the issue about judges making law, liberals would lose so the burden is been thrust on 12 year old female miscreants.

Just replace "-at-" with the "at sign," that lower-case letter A in a circle that you get from typing SHIFT+2. Due to aggressive spam filtering, however, I'm likely to miss your email unless the subject line of your email starts with "BeldarBlog."

Emails re broken links, typos, and spelling, grammar, and usage errors are cheerfully solicited and will be gratefully received.